Xeni v Hunter’s Hill Council

Texts Cited: Hunters Hill Development Control Plan 2013

Category: Principal judgment

Parties: Helen Christine Xeni (First Applicant)
Xeni Xeni (Second Applicant)
Hunter’s Hill Council (Respondent)

Representation: Counsel:
C Gough (Solicitor) (First and Second Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Storey & Gough (First and Second Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/316690

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application which seeks consent for the partial demolition of the existing structures and alterations and additions to the existing dwelling house at 3 William Street, Henley (Lot 2 Section 4 DP 810) (the site). The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The matter was listed for a mandatory conciliation and hearing on 19 March 2024, under s 34AA of the Land and Environment Court Act 1979 (LEC Act) and commenced onsite with a view. I presided over the conciliation conference.

3. During the s 34 conciliation conference, the Applicants amended its development application in an effort to resolve the outstanding contentions and issues raised by the local objectors. As the Council accepted that the amendments to the development application have resolved the contentions, the parties were able to reach an agreement as to the terms of a decision in the proceedings that would be acceptable to them. The signed agreement was subsequently filed on 19 March 2025, and is supported by a Jurisdictional Statement. The decision agreed upon is for the grant of development consent to the amended development application subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

5. The Applicants are the owners of the site of the proposed development: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

6. Between 14 and 27 June 2024, the development application was notified by the Council. No submissions were received.

7. As defined by the EPA Regulation, the proposed development is BASIX development. As required by State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP BASIX), the amended development application is accompanied by a BASIX certificate. Section 2.1(5) of SEPP BASIX requires the consent authority to be satisfied that the embodied emissions attributable to the development have been quantified. The parties agree, and I accept that, the sum of embodied emissions from all materials proposed has been entered into the online BASIX online tool and the total embodied emissions for the development have been calculated. I am satisfied that the embodied energy report forms part of the online BASIX tool of which the BASIX certificate is part.

8. The site is within the Sydney Harbour Catchment area and is mapped on the Sydney Harbour Catchment Map. Pursuant to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) in granting consent, there are a number of preconditions and matters that must be satisfied and considered prior to the grant of consent to the development application.

9. As required by s 6.6 of SEPP BC, I must consider the matters at subs (1) encompassing the impacts of the proposed development on water quality and quantity, including impacts from the development on groundwater and stormwater. The development application is accompanied by stormwater drainage plans and details prepared by Syd Engineers. The parties agree, and I accept, that these plans demonstrate how the stormwater runoff will be managed to ensure the development will have a neutral or beneficial effect on the quality of water entering a waterway. Further, the stormwater details demonstrate the development will minimise the impact on:

(a) water flow in a natural waterbody, the adjoining properties and downstream land; (b) The amount of stormwater run-off from a site; (c) the level or quality of water in the watertable; (d) The cumulative impact of development within the regulated catchment; and (e) the quality and quantity of ground water.

6. The parties agree, and I accept, that subject to the installation and maintenance of sediment controls during building works, the development will have a neutral effect on the quality of water entering a waterway.
7. Further, the Statement of Environmental Effects (SEE) which accompanies the development application confirms the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and that the impact on water flow in a natural waterbody will be minimised. Having considered the matters at s 6.6(2) of SEPP BC, I am satisfied that none preclude the grant of consent.
8. Pursuant to s 6.7 ‘Aquatic Ecology’ of SEPP BC, the consent authority is required to consider the matters at subs (1). On the basis of the SEE, the architectural and stormwater plans I accept the agreement of the parties that:

(a) To the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor and not determinative of the development application. (b) The development does not involve the clearing of riparian vegetation. (c) The development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterbody. (d) The development will not have an adverse impact on wetlands. (e) The development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures. (f) The development does not adjoin a natural waterbody.

9. Accordingly, in relation to the s 6.7(2) of SEPP BC, on the basis of the SEE and the stormwater plans, I accept the agreement of the parties that I can be satisfied that:

(a) Any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development. (b) The development will not have a direct, indirect or cumulative adverse impact on aquatic reserves. (c) No approval or permit is required under the Water Management Act 2000 or Fisheries Management Act 1994. (d) The land does not abut a natural waterbody. (e) There will be no adverse impact on wetlands.

10. Pursuant to s 6.8 ‘Flooding’ of SEPP BC in deciding whether to grant development consent to development on land in a regulated catchment, I must consider the likely impact of the development on periodic flooding that benefits wetlands and other riverine ecosystems. On the basis of the SEE and the plans which form part of the development application, I accept that the development will have no impact on these matters. Further, I am satisfied that the development will not:

(a) if there is a flood, result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody, or (b) have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

11. The site is more than 100 metres (m) from the foreshore of Wallumatta Bay. Accordingly, I accept the agreement of the parties that the proposed development is not likely to have a detrimental impact on the recreational uses in the Sydney Harbour Catchment. Further, the scope of the development for which consent is sought is such that the matters listed at s 6.9(2) of SEPP BC do not arise.
12. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed of residential use.. The development application does not propose a change of use. The parties agree and I accept, on the details in the SEE accompanying the development application, that s 4.6 of SEPP RH is satisfied.
13. Hunters Hill Local Environmental Plan 2012 (LEP 2012) applies to the land. Development for the purposes of dwelling houses is permitted with consent in the R2 Low Density Residential zone. As required by cl 2.3(2) of the LEP 2012, I have had regard to the R2 Low Density Residential zone objectives in determining the development application. The objectives of the zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the garden suburb character and heritage values that distinguish the low density localities.

• To provide for high levels of amenity that are consistent with a low density residential environment.

14. Clause 2.7 of the LEP 2012 requires development consent to be granted for and prior to the demolition of a building or work. The development application proposes the partial demolition of the existing structures on the site.
15. Pursuant to cl 4.3 ‘Height of Buildings’ and the Height of Buildings Map, the site has a maximum height development standard of 8.5m. The development application, as amended, complies with the 8.5m height control.
16. Pursuant to cl 4.4 ‘Floor Space Ratio’, the site has a maximum floor space ratio of 0.5:1. The development application, as amended, complies with the development standard.
17. The site is adjacent to a heritage item, being the existing dwelling at 5 William Street and the stone retaining wall at the street frontage of 5, 7 and 9 William Street. I note the agreement of the heritage experts in the proceedings that the proposed development will not have a detrimental impact on the heritage significance of these items : cl 5.10(4) of the LEP 2012.
18. The development is proposed on land which is mapped as Class 5 Acid Sulfate soil on the Acid Sulfate Soils map in LEP 2012. An Acid Sulfate Soils Assessment has been prepared and forms part of the development application. It concludes that the proposed works will not lower the water table below 1m Australian Height Datum on adjacent Class 2 land and that further assessment is not required. I am satisfied that the requirement of cl 6.1 of the LEP 2012 is met.
19. Pursuant to cl 6.3 of the LEP 2012, the consent authority must be satisfied that the development will not result in adverse impacts of stormwater runoff on the adjoining properties, native bushland and receiving waters. The amended development application detailed plans for the collection and disposal of all stormwater from the property. The parties agree, and I accept, demonstrate how the stormwater runoff will be managed to minimise the impact on the adjoining properties and surroundings of the site. In addition, the SEE accompanying the development application confirms that:

(a) Development application provided compliant landscaped areas including water permeable surfaces; (b) A rainwater tank is provided onsite for on-site retention and reuse; and (c) Given the mitigation measures it is unlikely the works will result in any runoff to the adjoining sites.

20. On this basis, I accept the parties’ agreement that the extent of stormwater runoff is unlikely to result in a significant impact on the adjoining properties, native bushland and receiving waters.
21. The site is mapped as ‘River Front Area’ on the River Front Area Map. Pursuant to cl 6.7(3) of the LEP 2012, the parties submit, and I accept with the assistance of the architectural plans and the SEE that:

(a) measures have been taken in the location, design and appearance of the development to minimise its visual impact from the waterway through the choice of materials and design as well as the retention of existing trees; (b) the development will maintain the historic, natural and aesthetic significance of the site through the high quality and respectful design of the dwelling and the retention and provision of landscaping; and (c) existing views towards the waterways from public roads and reserves will not be obstructed.

22. Pursuant to cl 6.9 ‘Landscaped Area’ of the LEP 2012, the landscaped area of any site on which development for the purpose of a dwelling house or a secondary dwelling is carried out must not be less that:

(a) For each site with a direct frontage to the Parramatta River or Lane Cove River – 60% of the site area; or (b) All other sites – 50% of the site area.

23. This landscaped area may be reduced by no more 33% for the purposes of accommodating a pathway, patio, terrace or pool if the development is consistent with the objectives of the clause. I accept the agreement of the planning experts that the amended development application is compliant with the development standard in cl 6.9 of LEP 2012.

24. Hunters Hill Development Control Plan 2013 (DCP 2013) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2013. In determining the development application, I have considered the provisions of the development control plan: subs 4.15(1) of the EPA Act.

25. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).

26. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

27. The Court notes that Hunter’s Hill Council (the Council) as the relevant consent authority has agreed, under s 37 of the EPA Regulation, to the Applicants amending the development application No. DA2024/0071 the subject of these proceedings as shown in the following amended plans and reports:

28. Architectural Plans by Campbell Hill Group Pty Ltd (all plans are dated 18 March 2025 except Drawings 02 and 17 which are dated 19 March 2025), Plans J0347 Drawings 01-26, 29-32 Revision L.

29. BASIX Certificate A1746117_02 by Building & Energy Consultants Australia dated 18 March 2025

30. Landscape Plan 1/1 by Eco Design Landscape Solutions dated 18 March 2025

31. Landscape Calculation Plan by Eco Design Landscape Solutions dated 18 March 2025

32. Acid Sulphate Assessment by Australian GeoEnviro dated 17 March 2025

33. Earthworks Review & Compliance Statement by Reda Salah dated 17 March 2025

34. The Court orders that:

35. The appeal is upheld.

36. Development application number DA2024/0071, as amended, for the partial demolition of existing structures and the alterations and additions to the existing dwelling at 3 William Street, Henley (Lot 2 Section 4 DP 810) is approved subject to the conditions detailed in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (193255, pdf)

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